STATE OF NORTH CAROLINA, ON RELATION OF CITY OF ALBEMARLE, Plaintiff,
CHUCKY L. NANCE, JENNIFER R. NANCE, CHARLENE SMITH, manager, NANCY DRY, JAMES A. PHILLIPS, Trustee, FIRST BANK, Lender, and KIRSTEN FOYLES, Trustee, Defendants.
in the Court of Appeals 5 June 2019.
by plaintiff from order entered 30 October 2017 by Judge Lori
Hamilton and orders entered 11 May 2018 and 29 May 2018 by
Judge Julia L. Gullett in Stanly County No. 17 CVS 609
Cranfill Sumner & Hartzog LLP, by Carl Newman and Janelle
Lyons, for plaintiff-appellant.
Bowling Law Firm, PLLC, by Kirk L. Bowling and Mark T.
Lowder, for defendant-appellees Chucky L. Nance and Jennifer
W. Webster for defendant-appellee Charlene Smith.
City of Albemarle (the "City") appeals from orders
of the trial court, which allowed Defendants' motions to
compel discovery and granted Chucky L. Nance's, Jennifer
R. Nance's ("the Nances"), and Charlene
Smith's ("Smith") motions to dismiss. We
Nances have owned the subject property in Albemarle since
2012. A business known as the "Heart of Albemarle
Hotel" operated on the property until April 2017. From
January 2014 through April 2017, three years and four months,
Albemarle police officers allegedly visited the areas near
the subject property seventy-nine times in response to
complaints of criminal activity, including assaults, sales of
narcotics, and solicitation of prostitution.
March 2017, Albemarle's Chief of Police R.D. Bowen sent
letters to the Nances, Kirsten Foyles, Nancy Dry, and James
A. Phillips, Jr., giving notice to the parties, asserting the
subject property was being used illegally under the nuisance
statute, and demanding the nuisance be abated within 45 days.
No notice letter was sent to Defendant Smith.
City's purported outside counsel filed a complaint
against the Nances, Smith, First Bank, Foyles, Dry, and
Phillips on 4 August 2017, four months after the hotel had
closed and all activities had ceased. The City alleged the
Nances' use of real property constitutes a public
nuisance pursuant to N.C. Gen. Stat. §§ 19-1 and
19-2. The City also alleged Smith was employed as a manager
of the subject hotel but "Nance has fired Charlene Smith
as the manager of the Property, but has placed her at
[another hotel owned by the Nances] as the acting manager,
overseeing day-to-day operations."
Nances responded they had complied with the City's notice
letter, fired Smith, evicted all patrons and tenants of the
subject property, closed the hotel by 21 April 2017 and filed
their answer. The Nances alleged they had notified City
Manager Michael Ferris that all patrons and tenants had been
evicted in April 2017 and the property was and has remained
closed since that time.
filed her answer and alleged she had "vacated the
subject property on or about April 20, 2017 at the request of
Defendant Chucky Nance when the business thereon ceased
and First Bank filed a motion to dismiss, which was granted
by the trial court in an order filed 13 November 2017. The
City voluntarily dismissed the claims against Dry and
Phillips, with prejudice, on 26 October 2017. None of those
orders, actions, or dismissed parties are before us on appeal
and judgments thereon are final.
moved to dismiss the City's claims against her pursuant
to N.C. R. Civ. P. 12(b)(6) as part of her answer. Smith
argued, in part, that the City's complaint was
insufficient, where it alleged she had been employed by the
Nances and no allegation of her ownership existed to make her
a real party in interest. The trial court heard and granted
Smith's motion to dismiss with prejudice.
Nances also filed a motion to dismiss the City's claims
for lack of subject matter jurisdiction. The trial court
heard the Nances' motion to dismiss, wherein they argued
N.C. Gen. Stat. § 160A-12 required the city council to
have passed a resolution authorizing the filing of the
complaint. See N.C. Gen. Stat. § 160A-12
(2017). The City conceded, and the trial court found as fact,
that no such resolution had been presented to, heard, or
adopted by the council.
trial court entered an order granting the Nances' motion
to dismiss, which states, in relevant part:
1. N.C. General Statutes 19-2.1 grants authority to "the
Attorney General, district attorney, county, municipality, or
any private citizen of the county" to bring a civil
action in the name of the State of North Carolina to abate a
nuisance. This section specifies how a case must proceed.
2. N.C. General Statutes 160A-11 sets out and describes the
corporate powers of cities and towns as follows:
The inhabitants of each city heretofore or hereafter
incorporated by act of the General Assembly or by the
Municipal Board of Control shall be and remain a
municipal corporation by the name specified in the city
charter. Under that name they shall be vested with all of the
property and rights in property belonging to the corporation;
shall have perpetual succession; may sue and be
sued; may contract and be contracted with; may acquire
and hold any property, real and personal, devised, sold, or
in any manner conveyed, dedicated to, or otherwise acquired
by them, and from time to time may hold, invest, sell, or
dispose of the same; may have a common seal and alter and
renew the same at will; and shall have and may exercise